Committees:

Presenter:
Jerry Cooke

I.
DISCUSSION: Under
Parks and Wildlife Code,
Chapter 43, Subchapter
L, the Commission is authorized
to promulgate regulations
governing the possession
of white-tailed deer and
mule deer for scientific,
management, and propagation
purposes. The passage
of House bill 2541 by
the Seventy-fifth Texas
Legislature amended Subchapter
L and necessitates rulemaking
by the department to conform
existing regulations with
the intent of the Legislature.
The proposed regulations
located at Exhibit A would:
synchronize the period
of validity of scientific
breeder permits by setting
a universal expiration
date; standardize the
tagging requirements for
captive deer; allow the
recapture of escaped deer;
provide procedures and
requirements for the transportation
of deer immediately before
and during an open deer
season; stipulate that
all deer entering the
state for the purposes
of Subchapter L be tested
as required by the Texas
Animal Health Commission;
and effect housekeeping
changes in the interest
of clarity. At the November
1997, meeting of the Regulations
Committee, staff was given
permission to publish
the proposed Scientific
Breeder Proclamation in
the Texas Register for
public comment. The proposed
Scientific Breeder Proclamation
was published in the December
19, 1997, issue of the
Texas
Register (22 TexReg
12432). Staff has received,
analyzed, and responded
to public comment on the
proposed Scientific Breeder
proclamation, and a synopsis
will be available at the
time of the hearing.

II.
RECOMMENDATION: The staff recommends the
Parks and Wildlife Commission
adopt the following two
motion:

"The Texas Parks and
Wildlife Commission adopts
the proposed repeal of 31
TAC §65.604 and §65.606,
and amendments to §§65.601-65.603,
65.605, and 65.607-65.611,
concerning scientific
breeders, with changes
to the proposed text
as published in the
December 19, 1997, issue
of the Texas
Register (22
TexReg 12432)."

Proposed
Preamble

1. Introduction.

The Texas Parks and Wildlife
Department proposes the
repeal of §65.604 and §65.606,
and amendments to §§65.601-65.603,
65.605, and 65.607-65.611,
concerning scientific breeders.
The amendments are necessary
to implement statutory provisions
enacted by the 75th Texas
Legislature in House Bill
2541. The amendments will
function to synchronize
the period of validity of
scientific breeder permits
by setting a universal expiration
date; standardize the tagging
requirements for captive
deer; allow for the recapture
of escaped deer; provide
procedures and requirements
for the transportation of
deer immediately before
and during an open deer
season; stipulate that all
deer entering the state
for the purposes of Subchapter
L be tested as required
by the Texas Animal Health
Commission; and effect housekeeping
changes in the interest
of clarity.

2. Fiscal Note.

Robert Macdonald, Wildlife
Division regulations coordinator,
has determined that for
each of the first five years
that the amendments as proposed
are in effect, there will
be no additional fiscal
implications to state or
local governments as a result
of enforcing or administering
the amendments.

3. Public Benefit - Cost
Note.

Mr. Macdonald also has
determined that for each
of the first five years
the amendments are in effect:

(A) The public benefit
anticipated as a result
of enforcing the amendments
as proposed will be the
conformance of the department's
regulations to statutory
law.

(B) There will be no effect
on small businesses. There
is no additional economic
cost to persons required
to comply with the amendments
as proposed.

(C) The department has
not filed a local impact
statement with the Texas
Employment Commission as
required by Government Code, §2001.022,
as this agency has determined
that the amendments as proposed
will not impact local economies.

(D) The department has
determined that there will
not be a taking of private
property, as defined by
Government Code, Chapter
2007, as a result of the
proposed amendments.

The amendments are proposed
under Parks and Wildlife
Code, Chapter 43, Subchapter
L, which provides the commission
with authority to promulgate
regulations governing the
possession of white-tailed
deer and mule deer for scientific,
management, and propagation
purposes.

The following words and
terms, when used in this
subchapter, shall have the
following meanings, unless
the context clearly indicates
otherwise. All other
words and terms shall have
the meanings assigned by
Parks and Wildlife Code.

[Adult deer - Any deer
held in captivity on January
1 following birth.]

[Captivity - The keeping
of an animal in an enclosure
suitable for and capable
of retaining the animal
it is designed to retain
at all times under reasonable
and ordinary circumstances
and to prevent entry by
another animal, Texas
Parks and Wildlife Code, §43.351(2).]

Certified Wildlife Biologist
- A person not employed
by the department who has
been certified as a wildlife
biologist by The Wildlife
Society, or who:

(A) has been awarded
a bachelor's [fulfilled
the scholastic requirements
of an accredited university
or college for the B.S.]
degree or higher [(or
an advanced degree) with
major course work]
in wildlife science, [or]
wildlife management,
or a related educational
field; and

(B) has not less than five
years of post-graduate experience
in research or wildlife
management associated with
white-tailed deer or mule
deer within the past 10
years.

Common Carrier - Any licensed
firm, corporation or establishment
which solicits and operates
public freight or passenger
transportation service or
any vehicle employed in
such transportation service.

Deer - White-tailed deer
of the species Odocoileus
virginianus or mule
deer of the species Odocoileus
hemonius.

[Department - The Texas
Parks and Wildlife Department
or any authorized employee
thereof.]

Designated agent - An individual,
identified on an application
for a scientific breeder's
permit, who is authorized
by the permittee to conduct
activities on behalf of
the permittee.

[Director - The Executive
Director of the Texas
Parks and Wildlife Department.]

[Enclosure - An area
of not more than 320 acres
that is completely surrounded
by department-approved
fencing for the purposes
of reducing deer to a
state of captivity.]

Facility - One or more
enclosures, in the aggregate
and including additions,
that are the site of scientific
breeding operations under
a single scientific breeder's
permit.

Fawn - Any deer
with a spotted coat.

[Management - The application
of scientifically tested
techniques to manipulate
captive deer herds in
a manner that they manifest
desired attributes that
can be applied to free-ranging
deer herds.]

Propagation - The holding
of captive [white-tailed
deer or mule] deer for reproductive
purposes [the
purpose of increasing their
numbers].

[Purchase Permit - A
permit required of all
persons to purchase or
accept a live white-tailed
deer or mule deer in this
state.]

Sale - The transfer of
possession of deer for consideration
and includes a barter and
an even exchange.

Scientific - The accumulation
of knowledge, by systematic
methods, about the physiology,
nutrition, genetics, reproduction,
mortality and other biological
factors affecting [white-tailed
deer or mule] deer.

Serial Number - A permanent
number assigned to the scientific
breeder by the department.

[Transport Permit -
A permit required for
the transport or shipment
of a live white-tailed
deer or mule deer by any
person except a scientific
breeder or his designated
agent.]

Unique number -
a four-digit alphanumeric
identifier issued by the
department to a scientific
breeder for the purpose
of permanently marking
a deer such that the animal’s
history of ownership can
be tracked.

§65.602. Permit
Requirement and Permit
Privileges.

(a) No
person may possess a
live deer in this state
unless that person possesses
a valid [A
person who possesses
or seeks to possess
deer for scientific,
propagation or management
purposes must hold,
prior to possession
of any deer, a valid
scientific breeder's]
permit issued by the
department under
the provisions of Parks
and Wildlife Code, Chapter
43, Subchapters C, E,
L, or R [,
unless that person possesses
a valid permit issued
under the provisions
of §§57.271-57.284
of this title (relating
to Scientific, Educational,
and Zoological Permits)
or Chapter 65, Subchapter
C of this title (relating
to Permits for the Trapping,
Transporting, and Transplanting
of Game Animals and
Game Birds)].

(b) A person who
possesses a valid scientific
breeder's permit may:

(1) possess deer
within the permitted facility
for the purpose of propagation
[engage in the business
of breeding deer within
the facility for which
the permit was issued];

(2) engage in the
business of breeding legally
possessed deer within
the facility for which
the permit was issued;
[possess deer within
the permitted facility
for the purpose of propagation;
and]

(3) sell deer that
are in the legal possession
of the permittee; [and]

(4) release deer
from a permitted facility
into the wild as provided
in this subchapter; and

(5) recapture lawfully
possessed deer that have
been marked in accordance §65.607
of this title (relating
to Marking of Deer) that
have escaped from a permitted
facility [onto property
owned by the permit holder]

§65.603. Application
and Permit Issuance.

(a) An applicant
for a scientific breeder's
permit shall submit the
following to the department:

(1) a completed
notarized application
on a form supplied by
the department;

(2) a breeding
[management] plan
which identifies:

(A) the activities
proposed to be conducted;
and

(B) the purpose(s)
for proposed activities;

(3) a letter of
endorsement by a certified
wildlife biologist which
states that:

(A) the certified
wildlife biologist has
reviewed the breeding[management]
plan;

(B) the activities identified
in the breeding [management]
plan are adequate to accomplish
the purposes for which the
permit is sought; and

(C) the facility identified
in the application is adequate
to conduct the proposed
activities;

(4) a diagram of the physical
layout of the facility;

(5) the application processing
fee specified in §53.8 [§65.604]
of this title (relating
to (Miscellaneous
Wildlife Licenses and Permits [Fees]);
and

(6) any additional information
that the department determines
is necessary to process
the application.

(b) A scientific breeder's
permit may be issued when:

(1) the application and
associated materials have
been approved by the department; and

(2) [the facility has
been inspected and approved
as specified in §65.606
of this title (relating
to Inspections); and]

[(3)] the department
has received the fee as
specified in §53.8 [§65.604]
of this title (relating
to (Miscellaneous
Wildlife Licenses and Permits [Fees]).

(c) A scientific breeder's
permit shall be valid from
the date of issuance until
the immediately following
March 31. Permit and renewal
fees for permits issued
prior to March 31, 1998
shall be pro-rated, if necessary. [for
a period of one year from
the date of issuance, unless
suspended or revoked by
the director in accordance
with the provisions of Parks
and Wildlife Code, §§12.501-12.507].

(d) A scientific breeder's
permit may be renewed annually,
provided that the applicant:

(1) is in compliance with
the provisions of this subchapter;

(2) has submitted a notarized
application and associated
materials required by this
section;

(3) has filed the annual
report in a timely fashion,
as required by §65.608
of this title (relating
to Annual Reports and Records);
and

(4) has paid the permit
renewal fee as specified
in §53.8 [§65.604]
of this title (relating
to (Miscellaneous
Wildlife Licenses and Permits [Fees]).

(e) The department
may, at its discretion,
refuse to issue a permit
or permit renewal to any
person finally convicted
of any violation of Parks
and Wildlife Code, Chapter
43.

[§65.604.
Fees.

[(a) The application
processing fee for a scientific
breeder's permit or renewal
of the permit is $150.

[(b) The application
processing fee for a purchase
permit is $25.

[(c) The application
processing fee for a transport
permit is $25.

[(d) Application processing
fees are not refundable.]

§65.605. Holding
Facility Standards and
Care of Deer.

(a) [A scientific breeder
shall provide and maintain
the following facility
standards during the permit
period.

[(1) At any time that
an enclosure is used to
hold deer in captivity,
the enclosure shall meet
the following space requirements:

[(A) a minimum of 400
square feet per adult
deer;

[(B) a minimum of 400
square feet for each adult
doe with fawn(s); and

[(C) a minimum of 200
square feet for each fawn
segregated from its dam.

[(2) Each enclosure,
when deer are present,
shall be provided with:

[(A) a prepared commercial
deer ration of not less
than 12% protein at a
daily rate of not less
than 2½ pounds
per deer when comparable
natural forage is not
immediately available
within that enclosure
in quantity to maintain
deer in a healthy condition;
and

[(B) sufficient fresh,
clean water at all times.

[(3) Each enclosure
where deer are held shall
include a single area
of continuous shade measuring
at least 20 square feet
per deer.]

[(4)] The entire
perimeter fence of a facility
shall be no less than seven
feet in height, and shall
be constructed of department-approved
net mesh, chain link or
welded wire that will retain
deer. An indoor facility
is acceptable if it meets
the standards described
in this section and provides
permanent access to an outdoor
environment that is sufficient
for keeping the deer in
captivity.

(b) A permittee
shall notify the department
immediately upon discovering
the escape of deer from
a facility. Such notice
shall be made on a form
provided by the department
and shall be notarized.
The permittee shall have
10 days from the date
of such report to capture
only those deer that are
marked in accordance with §65.607
of this title (relating
to Marking of Deer). All
recaptured deer must be
returned to the facility
from which the deer escaped.
If after 10 days the permittee
is unable to capture escaped
deer that have been reported
in accordance with this
subsection, the department
may grant an additional
five-day period for capture
efforts to continue, contingent
upon the permittee proving
to the department’s
satisfaction that reasonable
efforts were made to effect
the capture during the
first 10-day period. [The
permittee shall insure
that medical treatment
will be provided, when
appropriate, to maintain
the health of deer held
under the provisions of
this subchapter.]

(c) A scientific
breeder may move fawns
from a permitted facility
to another location for
nursing purposes, provided:

(1) the nursery
is located on the same
tract of land as the permitted
breeding facility;

(2) the scientific
breeder requests and receives
written authorization
from the department to
establish a designated
location for nursing purposes;
and

(3) all fawns in
such a nursery are marked
in accordance with §65.607(a)
of this title (relating
to Marking of Deer).

[§65.606.
Inspections.]

[(a) The department
may inspect the facilities
of an applicant for or
holder of a scientific
breeder's permit at any
reasonable time to ensure
compliance with the standards
specified in §65.605
of this title (relating
to Holding Facility Standards
and Care of Deer).

[(b) Each new facility
or addition to an existing
facility must be inspected
prior to the placement
of deer in that facility
or addition. Temporary
holding facilities in
compliance with the provisions
of §65.609(f) of
this title (relating to
Purchase of Deer and Purchase
Permit) are exempt from
the requirements of this
subsection.

[(c) The department
shall notify the applicant
for or holder of a scientific
breeder's permit of all
deficiencies reported
as a result of department
inspections.

[(d) A scientific breeder's
permit shall not be issued
or renewed until deficiencies
have been corrected.

[(e) When deficiencies
exist, an applicant for
a scientific breeder's
permit may:

[(1) correct the deficiencies
and request that the department
reinspect the facility;
or

[(2) withdraw the application.

[(f) A scientific breeder
whose facilities are found
to be deficient shall:

[(1) correct the deficiencies
within 30 days of notification
by the department; or

[(2) relinquish the
permit and dispose of
the deer as prescribed
by §65.612 of this
title (relating to Disposition
of Deer).]

§65.607. Marking
of Deer.

(a) Each
deer held in captivity by
a permittee shall be permanently
marked by:

(1) a unique number
tattooed in one ear; and

(2) an ear tag
that shows the letters "TX" followed
by the serial number assigned
to the scientific breeder [for
positive identification
as prescribed in this
section].

[(1) Each deer shall
have a tag attached to
the ear as prescribed
by Texas Parks and Wildlife
Code, §43.356(b);
and

[(2) Each deer shall
be permanently freeze-branded
on the left hip with a
2" by 4" brand showing
the letters "TX" together,
or shall be tattooed in
one ear with the serial
number assigned to the
scientific breeder.]

(b)[(3)]
Fawns must be permanently
marked by the first November [October]
1 following birth.

(c) All deer held
in a scientific breeder
facility prior to the
effective date of this
section must be marked
upon first handling or
prior to leaving the facility,
whichever occurs first.

§65.608. Annual
Reports and Records.

(a) Each scientific breeder
shall file a completed [an]
annual report on
a form supplied or approved
by the department by
not later than April
16 of each year. [15
days following permit expiration
on a form provided by the
department. The report shall
cover the 12-month period
of validity for the permit
and account for the disposition
of all deer by providing
the following information:

[(1) the number of deer
possessed at beginning
of report period;

[(2) the number of deer
sold or transferred and
the name and address of
each purchaser and/or
recipient of each deer;

[(3) the number of deer
purchased and the name
and address of person(s)
from whom the deer were
purchased;

[(4) the number of fawns
born during the reporting
period;

[(5) the number of deer
that died and the cause
of each mortality;

[(6) the number of deer
released into the wild
and location of each release;
and

[(7) the number of deer
possessed at the end of
the reporting period.]

(b) [The annual report
shall also indicate the
results of any scientific
research conducted authorized
under the permit during
the permit year.]

[(c)] The holder
of a scientific breeder's
permit shall maintain
and, on request,
provide to the department
adequate documentation as
to the source or origin
of all deer held in captivity.

§65.609. Purchase
of Deer and Purchase Permit.

(a) Deer may be purchased
or obtained for:

(1) holding for propagation
purposes if the purchaser
possesses a valid scientific
breeder's permit; or

(2) liberation for stocking
purposes.

(b) Deer may be purchased
or obtained only from:

(1) a holder of a valid
scientific breeder's permit;
or

(2) a lawful out-of-state
source.

(c) An individual may possess
or obtain deer only after
a purchase permit has been
issued by the department.
Purchase permits shall be valid [effective]
for 30 [90]
days from the date that
the scientific breeder has:

(1) completed,
dated, signed, and faxed
the permit to the Law
Enforcement Communications
Center in Austin;

(2) received and
possesses on their person
a return fax from the
department in acknowledgment
of the fax required by
paragraph (1) of this
subsection [of issuance
and shall expire upon
use].

(d) A purchase
permit is valid only during
the period of validity
of a scientific breeder’s
permit, is effective for
only one transaction,
and expires after one
instance of use.

(e)[(d)]
A one-time, 30-day [90-day]
extension of effectiveness
for a purchase permit may
be obtained by notifying
the department prior to
the original expiration
date of the purchase permit.

(f) If a scientific
breeder transports deer
to another scientific
breeder during any open
season for deer or during
the period beginning 10
days immediately prior
to an open season for
deer, the scientific breeder
shall, as part of the
notification requirement
of subsection (c) of this
section, include on the
purchase permit faxed
to the department the
unique number of each
deer being transported.

(g)[(e)]
The department may issue
a purchase permit for liberation
for stocking purposes if
the department determines
that[:

[(1)] the release
of deer will not detrimentally
affect existing populations
or systems[; and

[(2) the release is
in accordance with the
provisions of the department's
stocking policy, §§52.101,
52.105, 52.201, 52.202,
52.301 and 52.401 of this
title (relating to Stocking
Policy)].

(h) [(f)]
Deer lawfully purchased
or obtained for stocking
purposes may be temporarily
held in captivity:

(1) to acclimate the deer
to habitat conditions at
the release site;

(2) when specifically authorized
by the department;

(3) for a period to be
specified on the purchase
permit, not to exceed six
months;

(4) [if the deer are
maintained as set forth
in §65.605(a)(1)-(4)
of this title (relating
to Holding Facility Standards
and Care of Deer);]

[(5)] if the deer
are not hunted prior to
liberation; and

(5)[(6)]
if the temporary holding
facility is physically separate
from any scientific breeder
facility and the deer being
temporarily held are not
commingled with deer being
held in a scientific breeder
facility. Deer removed from
a scientific breeder facility
to a temporary holding facility
shall not be returned to
any scientific breeder facility.

§65.610. Transport
of Deer and Transport
Permit.

(a) The holder of a valid
scientific breeder's permit
or a designated agent may,
without any additional permit,
transport legally possessed
deer:

(1) to another scientific
breeder when a valid purchase
permit has been issued for
that transaction;

(2) to an individual who
does not possess a scientific
breeder's permit if a valid
purchase permit for release
into the wild for stocking
purposes has been issued
for that transaction; and

(3) to and from an accredited
veterinarian for the purpose
of obtaining medical attention.

(b) The department may
issue a transport permit
to an individual who does
not possess a scientific
breeder's permit if the
individual is transporting
deer for liberation purposes
and the deer were legally
purchased or obtained from:

(1) a scientific breeder;
or

(2) a lawful out-of-state
source.

(c) All deer entering the
boundaries of this state
shall:

(1) be accompanied by a
certificate of health, signed
by an accredited veterinarian,
which bears the purchaser's
name and address, specifies
the destination of the deer,
and certifies that the deer:

(A) have been inspected
by the veterinarian named
on the certificate within
10 days prior to the time
of transport;

(B) are free of external
parasites; [and]

(C) are free of evidence
of contagious and communicable
diseases; and

(D) have been tested
in accordance with any
applicable regulations
of the Texas Animal Health
Commission; and

(2) be accompanied by a
permit or document from
the government agency authorizing
the exportation of the deer
from the state or country
of origin, if such permit
or document was required
as a condition for export
from the state or country
of origin.

(d) Deer may not be transported
for the purposes of this
subchapter during any open
season for deer or during
the period beginning 10
days immediately prior to
an open season for deer
unless the scientific
breeder notifies the department
by contacting the Law Enforcement
Communications Center in
Austin no less than 24 hours
before actual transport
occurs.[:

[(1) the antlers of
any male deer have been
removed immediately above
the pedicel];

[(2) the game warden
in the county of origin
of the deer, if the county
of origin is within the
state of Texas, and the
game warden in the county
of the destination of
the deer, if the county
is within the state of
Texas, have been notified
in writing; and

[(3) written permission
has been granted by the
game wardens in both the
origin and destination
counties, if such counties
are within the state of
Texas, and such written
permission is carried
with the deer during transportation.]

(e) Transport permits shall
be effective for 30 [90]
days from the date that
the scientific breeder has:

(1) completed,
dated, signed, and faxed
the permit to the Law
Enforcement Communications
Center in Austin; and

(2) received and
possesses on their person
a return fax from the
department in acknowledgment
of the fax required by
paragraph (1) of this
subsection [of
issuance and shall expire
upon use].

(f) A transport
permit is valid only during
the period of validity
of a scientific breeder’s
permit, is effective for
only one transaction,
and expires after one
instance of use.

(g)[(f)]A
one-time, 30-day [90-day]
extension of effectiveness
for a transport permit may
be obtained by notifying
the department prior to
the original expiration
date of the transport permit.

§65.611. Prohibited
Acts.

(a) Deer obtained from
the wild under the authority
of a permit or letter of
authority issued pursuant
to Parks and Wildlife Code,
Chapter 43, Subchapter C, [or]
E, or R shall
not be commingled with deer
held in a permitted
scientific breeder facility [under
a scientific breeder's permit].

(b) A person commits an
offense if that person places
or holds deer in captivity
at any place or on any property
other than property for
which a scientific breeder's
permit, or a permit authorized
under other provisions of
this title or Parks and
Wildlife Code, is issued,
except that a permittee
may transport and temporarily
hold deer at a veterinary
facility for treatment.

(c) No live deer taken
from the wild may be possessed
under a scientific breeder's
permit or held in
a scientific breeder's facility.

(d) No deer shall be held
in a trailer or other vehicle
of any type except for the
purpose of immediate transportation
from one location to another.

(e) Possession of a scientific
breeder's permit is not
a defense to prosecution
under any statute prohibiting
abuse of animals.

(f) No scientific breeder
shall hunt or kill, or allow
the hunting or killing of
deer held pursuant to this
subchapter.

(g) No scientific breeder
shall exceed the number
of deer allowable for the
permitted facility, as specified
by the department on the
scientific breeder's permit.

§65.612. Disposition
of Deer.

(a) Upon termination, suspension,
or revocation of a scientific
breeder's permit, the permittee
shall dispose of all deer
covered by the permit.

(b) Deer may be disposed
of by sale or donation to
another scientific breeder,
by sale or donation to a
holder of a zoological permit,
or by release to the wild
as specifically authorized
by the department.

(c) Deer still in possession
30 days following termination,
revocation, or suspension
of a permit shall be disposed
of at the discretion of
the Department.

(d) Disposition of all
deer shall be at the expense
of the permittee.

§65.613. Penalties. A
person who violates the
provisions of this subchapter,
a condition of a permit
issued under the provisions
of this subchapter or violates
any provision of Parks and
Wildlife Code, Chapter 43,
Subchapter L commits an
offense punishable by the
penalty prescribed by Parks
and Wildlife Code, §43.367.

This agency hereby certifies
the proposal has been reviewed
by legal counsel and found
to be within the agency's
authority to adopt.